Looking at medical malpractice through Bach’s eyes (Part 2)

Modern day medical treatment is founded on the consensual relationship between doctor and patient better known as informed consent. During the 1700s when medical paternalism ruled no consent from the patient was required before the doctor may proceed to treat the patient. It was only after the Nuremberg Trials that was held from 20 November 1945 to 1 October 1946, during which numerous Nazis was prosecuted for various atrocities suffered by Jews, committed by Nazis doctors during World War II under the auspices of medical research, that the requirement of informed consent was created in the Nuremberg Code. Although informed consent was then only required in terms of a code which could not be legally enforced, today informed consent is constitutionally protected in Section 12(2)(c) of the South African Constitution.

However, informed consent aside, a doctor still owes a patient the duty of care and should a doctor therefore perform any operation with such professional skill as to avoid injuring the patient, especially in view of the doctors’ Hippocratic Oath to do no harm. Failure to attend to their duty of care may result in harm to the patient and a subsequent delictual claim for damages.

Because Bach, an adult of sound mind, sought and requested the services of Taylor, who happened to be in the right place at the right time, it can be accepted that Bach tacitly consented to medical treatment by Taylor when he commenced his examination and surgical treatment of Bach. However, in today’s terms, to qualify as legally binding informed consent, a doctor must have informed a patient of all material facts such as his diagnosis, the nature of his proposed medical treatment and the inherent risks of such treatment, described in simple terms to enable the patient to apply his mind intelligently.

The criteria used to judge the materiality of information necessary for obtaining adequately informed consent in the United Kingdom (UK) differs from that in the United States of America (USA). The UK follows a doctor-centered approach to the effect that the court in Sidaway v Bethlem Royal Hospital Governors and Other [1984] 1 All ER 1018(CA), [1985] 1 All ER 635 (HL) held that a doctor is only required to inform a patient as expected in accordance with practice accepted as proper by a body of reasonable and skilled medical practitioners. This stands in stark contrast to the patient-centred approach followed by the USA court in Canterbury v Spence (1972) 464 F2d 772 in which it was held that the standard is not so much that of the reasonable doctor, but rather the reasonable or prudent patient. Although informed consent has not received much attention from South African courts it was said in the unreported matter of Rompel v Botha 1953 TPD that if medical treatment involve possible “serious risks” a patient should be apprised. Moreover, with the dawn of consumer rights in South Africa and the enactment of the Consumer Protection Act 68 of 2008 (CPA), consumers of medical services, in contrast to Bach, became much more educated and protected in respect of their consumer rights. Section 22 of the CPA specifically provides consumers with the right to receive information, including information regarding proposed medical services such as surgical interventions, in plain and understandable language, which is compatible with the patient-centred information requirement for obtaining legally binding informed consent.

It is unlikely that Bach was ever fully informed of the risks involved in his eye surgery, especially considering Taylor’s reputation and work methods. At worst Bach may have been provided with false, misleading or deceptive information regarding the couching procedure and its outcomes, which is strictly prohibited by section 41 of the CPA.

It may also have been that Taylor made an error of judgement when diagnosing or operating on Bach. A medical judgmental error is not necessarily negligent, but depends on the error made and whether it was an error that would not have been made by a reasonable competent professional man, having the standard and type of skill that the doctor held himself out as having and acting with ordinary care. Considering that Taylor confessed to blinding hundreds of his previous patients and left patients to their own devices after applying questionable post-operative care, he did not seem reasonable, competent or professional. He was further also accused of exaggerating his own abilities.

In deciding on a doctor’s negligence considering whether he measure up in any respect to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon the court, in Whitehouse v Jordan and Another [1981] 1 All ER 267 (HL), was of the opinion that to:

…say that a surgeon has committed an error of clinical judgment is wholly ambiguous and does not indicate whether he has been negligent, for while some errors of clinical judgement may be completely consisted with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgement may be so glaringly below proper standards as to make a finding of negligence inevitable.

In comparison with the successful cataract extraction operations performed by Daviel in France in 1847, 3 years prior to Bach’s operations, Taylor clearly did not measure up to his colleagues and may his diagnostic and/or treatment error not be an error in judgement or opinion, but almost deliberate ignorance, having regard to his career history and reputation. Section 54(1)(b) of the CPA entitles consumers to the performance of medical services in a manner and of a quality that patients are generally entitled to expect and should a doctor render substandard services, section 61 of te CPA stipulates that the docotr will be held liable for harm suffered by the patient, irrespective of whether the harm is the result of negligence on the part of the doctor. This so-called faultless liability has dramatically changed the ambit and burden of proof of medical malpractice claims, because the negligent exercise of medical care is no longer required.

However, a patient mus still prove that the medical treatment received from the doctor was the proximate cause of the harm suffered by the patient to succeed with a medical malpractice claim against the specific doctor.

Bach died less than 4 months after being operated on. Since his second eye operation he suffered continuous eye problems, pain, fever and what was then described as a “stroke”, but probably rather indicated a loss of consciousness. The fevers suggested infection, but is it very difficult to make a connection between the operations and the illness that killed Bach, but is the opthalmologic opinion that it seems unlikely that postoperative endophthalmitis would have smoldered for 4 months before causing a fatal sepsis, notwithstanding the fact that the operations itself as well as the post operative care would have weakened Bach and predisposed him to new infections.

In Mitchell v Dixon 1914 AD 519 it was held that no inference of negligence can be made merely on the basis that the diagnosis was wrong, unless the diagnosis was so palpably wrong as to imply the absence of skill and care with regard to the ordinary levels of skill in the medical profession.

Very little is known about the exact diagnosis of Bach disease or eye condition and is it questionable whether cataract surgery would result in death, even in the Baroque period. Although blinded by the same oculist (Taylor) Händel survived cataract surgery.

Should Taylor have warned Bach of the possibility of death that eye surgeries carry? Considering Taylor’s overdeveloped selfconfidence it seems unlikely that he would inform Bach of any such risks. Was death a realistic risk for eye surgeries at the time, and if so, would Bach have pressed on with the procedure(s)?

We’ll never know, but what we do know is that although Taylor escaped liabilty for Bach’s death in 1750, he may not have been so lucky under the current South African legal regime.

By
Marietjie Botes
marietjie@dyason.co.za

Looking at medical malpractice through Bach’s eyes (Part 1)

1752_DavielJohann Sebastian Bach, the great German composer and musician of the Baroque period, enjoyed good health for most of his life, but died, completely blind, less than four months after undergoing eye operations for what seemed to be cataracts at the hand of a travelling English eye surgeon, John Taylor, who was as well known for his eye surgeries as he was for his womanising and puffery.

Although Bach may have been suffering from Myopia (near sightedness), it was only at an older age that he developed cataracts. In addition, another kind of painful eye disease may have added to his worsening vision to the extent that Bach decided to have his eye operated on by the famous oculist, “Chevalier” John Taylor, who happened to be in Leipzig, Bach’s home town, at the time of his decision. In a biography of Taylor dated 1898, author Henry Jones wrote of Taylor that “…never was the art of Puffing displayed to such perfection…” and that Taylor was “…an instance of how far impudence will carry ignorance.”

Two eye operations were subsequently performed on Bach’s eyes by Taylor in 1750. The first operation that took place between 28 and 31 March 1750 was Taylor’s standard couching procedure, used for treating cataracts by displacing the opaque lens inferiorly into the vitreous, with the second operation performed between 5 and 7 April 1750, resulting from the reappearance of the cataract.

To put Taylor’s treatment of Bach’s cataracts in context one must briefly consider the history of cataract surgery.

Cataracts were very common in antiquity and comes from the Greek word kataráktēs meaning the fall of water and were treated with eye ointments and magic spells by the old Egyptians. The ancient Egyptians were also credited with the first surgical treatment of cataracts by couching the lens into the vitreous cavity as depicted in a wall painting in the tomb of the master builder Ipwy at Thebes (about 1200 BC).

cataract

Couching as method for treatment of cataracts was first described by an ancient Indian surgeon, Maharshi Sushruta in Sushruta Samhita, Uttra Tantra (800 BC) an Indian medical treatise. This method then spread to the western world by Greek travellers coming from India and the Middle East where the first indication of this method being used in the West was found in De Medicinae (29 BC), the work of a Latin encyclopaedist Aulus Cornelius, which also describes the couching operation.

The relatively simplistic method of the couching technique was probably the major reason for it being used as the procedure of choice for thousands of years until 1748 when a French ophthalmologist, Jacques Daviel, performed the first successful cataract extraction surgery whereby the lens could be removed by suction through a hollow instrument on 8 April 1747. This method was already described by the 10th century Persian physician Muhammad ibn Zakariya al-Razi, who attributed it to Antyllus, a 2nd century Greek physician.

The couching procedure was also mentioned in the articles of the Code of Hammurabi (1792-1759 BC), a celebrated codification of the laws that governed Babylonian life. This code contained 282 laws and did law 196 specifically stated that: “If a man put out the eye of another man, his eye shall be put out.” The governance of medical outcomes in this codes give an indication of a highly organised society where medical care was regulated. A number of these laws dealt with issues relating to the eye which is a further indication of the state of ancient ophthalmological knowledge. Penalties stipulated in the code for “medical malpractice” varied with the economic status of the patient.

If a doctor operates…on the eye of a patrician who loses his eye in consequence, his hands shall be cut off.

In the case of a slave, if the surgeon has caused his death the penalty was to replace him by another, and if he made the slave lose his eye, he shall pay half his value.

Subsequently, at the dawn of civilisation approximately 4 000 years ago, the Code of Hammurabi already laid the foundation for the concept of managed medical care and is considered to be the genesis of modern day managed care.

Taylor also performed the ancient method of couching on Bach, notwithstanding the fact that Daviel performed successful cataract extraction surgery three years prior to Taylor operating on Bach. However, Taylor allegedly confessed to blinding hundreds of patients, including the Baroque composer, George Friedrich Händel, whilst working in Switzerland. In an era where the only anaesthetics were alcohol and opiates, Taylor’s postoperative care were questionable at best. He regularly combined couching with local irritation of the eye by repeated incisions and cataplasms with excessive use of dubious methods such as bleeding and covered wounds he made with a bandage that increased the risk of infection and were patients only allowed to remove the bandages after 5 to 6 days when Taylor had already moved on to the next town to operate on new patients. Taylor’s arrival in a new town, which would be publicised prior to his arrival, was always marked by the delivery of along self-promoting speech to draw as big a crowd as possible.

Biographies of Bach indicated that Bach fell ill after the second operation performed by Taylor, experienced painful eyes and was completely blind, which blindness is compatible with most of the possible post-operative complications resulting from the above, especially ones involving inflammation and/or secondary rise of pressure in the eye. Bach never recovered, suffered a burning fever (hitsiges Fieber), which is consistent with infection, and died less than 4 months after the second operation.

Continue to Part 2 >

Emoluments attachments orders: legal certainty at last

Attaching a portion of a person’s salary is certainly toeing a very sensitive line of personal infringement. Proper consideration should therefore be given to all the relevant facts and processes before an emoluments attachment order, as it is legally known, is granted.

However, for years the practice was that such orders were merely processed and rolled out in masses in every conceivable magistrate’s court in the country, until the University of Stellenbosch’s Legal Aid Clinic (Law Clinic) and others started to question the legalities thereof. After much debate, legal argument and court orders the Constitutional Court finally gave legal certainty about requirements that have to be met before emolument attachment orders may be issued on 13 September 2016.

Stellenbosch’s above Law Clinic, amongst fifteen of their clients, applied to the Constitutional Court for confirmation of an order granted by the Western Cape High Court that certain specified words in Section 65J(2) of the Magistrate’s Court Act 32 of 1944 is inconsistent with the Constitution and therefore invalid to the extent that they fail to provide for judicial oversight over the issuing of emolument attachment orders against judgement debtors. The Constitutional Court agreed and ordered that:

…with immediate effect no emolument attachment order may be issued unless the court has authorised the issuing of such emolument attachment order satisfying itself that it is just and equitable and that the amount is appropriate.

Judgement debtors can thus now rest assured that emolument attachment orders may now only be issued and implemented against their salaries if a court of law has had proper judicial oversight, with other words, that the court had insight into the circumstances giving rise to the application for such an order and, more importantly, that the debtor will be able to afford the execution of such an order.

To gain some legal insight into the reasoning behind this judgement, three legal arguments were considered:

  1. Section 65J(2) provides for two avenues through which an emoluments attachment order may be issued: 1) by means of obtaining the debtor’s written consent thereto and 2) by authorisation of the court. The conjunction “or” that separates these two methods makes it linguistically plain that an emoluments attachment order could have been obtained merely through the consent of the debtor, without an court authorisation and that such an issued “order” may be executed “as if it were a court judgement” in terms of section 65J(5). It is not difficult to imagine the abuse that a judicially unsanctioned method of execution will lead to when vulnerable, unsophisticated or illiterate debtors are involved;

 

  1. Cameron J wrote that by not insisting on judicial oversight debtors’ constitutional right of access to court may be limited and they may also be deprived of their protection against arbitrary deprivation of property in terms of section 25 of the Constitution. Judicial oversight over the whole emoluments attachment order process will definitely alleviate these harsh effects, especially on distinctly low-income debtors’ dignity and livelihood;

 

  1. The issuing of emoluments attachment orders by either the creditor or his or her attorney in terms section 65J(1)(a) is also inconsistent with the independence of the judiciary as court would effectively act according to the dictates of judgment debtors or their attorneys. Ultimately, the clerk of the court would have the power to issue these orders instead of the court itself as section 65J(2)(a) provides for the granting of emoluments attachment orders without any court authorisation in instances where the debtor has consented thereto in writing.

The western Cape High Court and Constitutional Court have duly stepped up to their public responsibility and now emolument attachment orders may only be issued by a court of law after due consideration of the facts and circumstances of the application.

In the past judgment debtors were clearly exposed to a legal loophole and in need of protection from the court rules itself. Stellenbosch’s Law Clinic should be applauded for their attention to detail and perseverance in protecting debtors’ rights across the country.

However, judicial oversight, as opposed to a mere court process, will add to further legal costs and possible delays for judgement creditors. We will have to wait and see how the courts will similarly protect the legal interests of judgement creditors, who is also entitled to access to courts and the recovery of their legal damages, when exercising their above judicial oversight.

By
Marietjie Botes
marietjie@dyason.co.za